IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 : 

LEE ARTERS t/a GREENDALE BUILDERS : CIVIL ACTION - LAW 

 : 

 : 

 Plaintiff, : 

 : 

 v. : 

: No. 02-CV-4388 

ZURICH AMERICAN INSURANCE CO. t/a, : 

ZURICH NORTH AMERICA as successor in : 

Interest to ASSURANCE CO. OF AMERICA, et al. : JURY OF TWELVE (12) 

 : DEMANDED 

 : 

 Defendants. : 

___________________________________________ : 

PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO 

COMPEL PRODUCTION OF DOCUMENTS WRONGFULLY CLAIMED BY 

DEFENDANT AS PRIVILEGED

 Plaintiff’s brief in chief cites two reasons why Defendants are not entitled to 

claim that the documents sought by Plaintiff were privileged: 

 1. The claim was made contrary to the federal rules of civil procedure and 

thus waived, and/or 

2. That Defendant’s have put the advice of counsel in issue and therefore 

may not claim the privilege. 

In defense, Defendants opted to have the court examine the documents in camera. 

Plaintiffs submit that this is totally inappropriate at this stage. If the court agrees with the 

Plaintiff, no amount of in-camera inspection will be relevant inasmuch as the court will 

have determined either that the privilege was waived or that the “advice of counsel” has 

been put in issue. 

Case 2:02-cv-04388-JF Document 15 Filed 06/26/2003 Page 1 of 3
In support of its position, Defendants cite factual matters from depositions taken 

in May 2003. Those factual matters could not have been known by the Defendant at the 

time Defendants made their decision, wrongful as it was, to deny a defense or to 

indemnify the Plaintiff in the underlying litigation. The Defendants have made their bed 

by the decisions they made beforehand, and should be held bound by those decisions 

based upon the facts as they existed at the time that the decisions were made. 

Furthermore, Defendant has taken the opportunity at this time, to argue the merits 

of the declaratory judgment action. By the argument presently presented, Defendants are 

attempting to rationalize and justify the initial decision neither to defend nor indemnify. 

That argument, we respectfully submit, is premature. The issue at the present time is 

whether Defendants have waived the right to assert an attorney/client privilege and/or 

whether they have placed the attorney’s advice in issue. Defendants have blown hot and 

cold on that issue. They attempt to deny that they have placed the advice of counsel in 

issue on one hand, but on the other hand assert: “They (claims processors) simply seek to 

protect the right of a claim professional to seek legal input as one component among 

many, in formulating a final position concerning coverage” (page 2, defendant’s brief). 

Accordingly, the Defendants should not be permitted to deny the plain meaning of its 

own language: that it sought the advice of counsel to justify the conclusion neither to 

defend nor indemnify. 

Accordingly, the tactic to submit the documents for an in-camera inspection is 

premature. It may have been a proper procedure had Defendant not waived the privilege 

nor placed the advice of counsel in issue. That scenario, however, is not before the court. 

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Case 2:02-cv-04388-JF Document 15 Filed 06/26/2003 Page 2 of 3
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Accordingly, Plaintiff respectfully requests that the court issue an order holding 

that the Defendants have waived the attorney/client privilege and/or in the alternative that 

the advice of counsel has been placed in issue, and the documents sought by Plaintiff 

must be produced within ten (10) days of the court’s order. 

 Respectfully Submitted: 

 VAUGHAN, DUFFY & CONNORS, LLP 

 By: 

 Francis X. Nolan, I.D. 09237 

 Vaughan, Duffy & Connors, LLP 

 102 Pickering Way, Suite 400 

 Exton, PA 19341 

 (610) 524-2100 

Date: June 24, 2003 

Case 2:02-cv-04388-JF Document 15 Filed 06/26/2003 Page 3 of 3